Abbott v. Page Airways, Inc.

• Decision Date: 16 January 1969
• Parties: , 245 N.E.2d 388, 35 A.L.R.3d 696 Winona ABBOTT, as Executrix of the Estate of Robert N. Abbott, Deceased, Respondent, v. PAGE AIRWAYS, INC., Appellant. Gladys GAINES, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al., Respondents. Wentford GAINES, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al., Respondents. Raymond HUNTER, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al., Respondents. Theodore SOLOMON, as Administrator of the Estate of William Jones, Deceased, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al., Respondents. Theodore H. SOLOMON, as Administrator of the Estate of John L. Riley, Deceased, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al., Respondents. Christine BOLDEN, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al., Respondents. Lorena BRADBERRY, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al., Respondents. Elijah DAVIS, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al., Respondents. Betty Mae JOHNSON, Respondent, v. PAGE AIRWAYS, Appellant, and City of Rochester et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 713

297 N.Y.S.2d 713

23 N.Y.2d 502, 245 N.E.2d 388, 35

A.L.R.3d 696

Winona ABBOTT, as Executrix of the Estate of Robert N.

Abbott, Deceased, Respondent, v. PAGE AIRWAYS, INC., Appellant.

Gladys GAINES, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al.,

Respondents.

Wentford GAINES, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al.,

Respondents.

Raymond HUNTER, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al.,

Respondents.

Theodore SOLOMON, as Administrator of the Estate of William

Jones, Deceased, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al.,

Respondents.

Theodore H. SOLOMON, as Administrator of the Estate of John

L. Riley, Deceased, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al.,

Respondents.

Christine BOLDEN, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al.,

Respondents.

Lorena BRADBERRY, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al.,

Respondents.

Elijah DAVIS, Respondent, v. PAGE AIRWAYS, INC., Appellant, and City of Rochester et al.,

Respondents.

Betty Mae JOHNSON, Respondent, v. PAGE AIRWAYS, Appellant, and City of Rochester et al., Respondents.

Court of Appeals of New York.

Jan. 16, 1969.

Louis D'Amanda, John Van Voorhis and Eugene Clifford, for appellant.

Lee S. Kreindler, Milton G. Sincoff and Stanley J. Levy, for Winona Abbott, respondent.

FULD, Chief Judge.

During street rioting which erupted in Rochester in July of 1964, the Director of the Monroe County Civil Defense Office, Robert N. Abbott, decided that it would be useful to charter a helicopter in order to survey traffic and observe the disorder from the air. With the approval of the City Manager, he telephoned to the defendant, Page Airways, an airplane chartering service, to ascertain whether its helicopter 'was available' for that purpose. Upon being told that it was, Mr. Abbott arranged for a flight and, several hours later, after placing Civil Defense radio equipment aboard, he embarked, piloted by an employee of the defendant.

While flying low over the city, the helicopter crashed, killing four people--including Abbott and the pilot--injuring two others and causing considerable property damage. Ten separate actions, all arising out of this accident, were consolidated at a joint trial resulting in separate judgments against the defendant, totaling about $275,000. ¹ On appeal, each judgment was unanimously affirmed by the Appellate Division, and we granted leave, primarily, to consider (1) the defendant's asserted immunity from suit and (2) the propriety of the trial court's charge to the jury on the theory of Res ipsa loquitur, despite the fact that the plaintiff had introduced specific evidence of negligence on the part of the defendant's pilot.

We may dispose, quite briefly, of the defendant's claim to immunity--noting, initially, that the policy of this State has been to reduce rather than increase the obstacles to the recovery of damages for negligently caused injury or death, whether the defendant be a private person (see, e.g., Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192; Bing v. Thunig, 2 N.Y.2d 656, 667, 163 N.Y.S.2d 3, 11, 143 N.E.2d 3, 9) ² or a public body (Court of Claims Act, §§ 8, 8--a; General Municipal Law, Consol.Laws, c. 24, §§ 50 through 50--d). It is true that a provision of the New York State Defense Emergency Act (L.1951, ch. 784, § 113, as amd.) grants immunity to 'any * * * corporation * * * or any of (its) agents * * *, in good faith * * * complying with * * * any law * * * rule, regulation or order duly promulgated or issued pursuant to (the) act,' so long as the directive that is being obeyed 'relat(es) to civil defense' or is 'in connection with an authorized drill' of the 'civil defense force(s)' ³. Such a 'drill' may be held, when the chief executive of a city so directs, to assist in the protection of life or property threatened by flood, drought, earthquake, hurricane 'or other catastrophe arising from causes other than enemy attack'. (General Municipal Law, § 209--n, subd. (a); see, also, County Law, § 656--a.) ⁴ However, it is doubtful that the statutory term 'catastrophe' includes civil disorders of the kind which occurred in Rochester and, even assuming that it does, and assuming further--though with far less basis in the record--that Abbott's ill-fated flight was a 'drill' within the intendment of the statute, it is plain beyond dispute that the conditions for immunity were not met in this case.

The simple fact is that, in providing a helicopter and pilot for the use of Abbott, the defendant, Page Airways, was not complying with any 'law * * * rule, regulation or order * * * promulgated or issued' under the Defense Emergency Act or under any other statute. It was doing nothing more, it is clear from the record, than engaging in its regular business of providing air transportation for hire. Mr. Abbott, in arranging for the flight, did not, even by implication, issue an order to Page Airways or commandeer the helicopter; he asked if it was 'available' and only when, after some delay, he was told that it was, did he go forward with plans for its use. He had been authorized by the City Manager to obligate the city for payment for the rental of the aircraft. The manifestly self-serving conduct of the defendant after the accident, when it forbore to present a bill to the city and claimed, instead, that the aircraft had been commandeered, was not enough to bar the trial court from determining, as matter of law, that the rental was voluntary and in the ordinary course of the defendant's business.

There is no proper analogy--contrary to the defendant's contention--between this case and the calling of private persons into service by a peace officer to assist in making an arrest or in curbing a public disorder. (See, e.g., Code Crim.Proc. §§ 102, 104, 110; former Penal Law, Consol.Laws, c. 40, §§ 1848, 2095; Riker v. City of New York, 204 Misc. 878, 126 N.Y.S.2d 229, affd. 286 App.Div. 808, 143 N.Y.S.2d 620.) Neither the defendant nor its employee pilot had any such role on the afternoon of the fatal accident. They were only retained to provide transportation over the troubled area, presumably well out of harm's way, so that Abbott could see and report on what was happening below. That some of the people on the ground were rioters or potential rioters made no more difference, at helicopter height, than if they had been on a peaceful parade. The defendant was, therefore, obligated to the same standards of care and was subject to the same liabilities as it would have been in connection with any other charter of its aircraft, and the trial court was entirely correct in so instructing the jury. What we have said, it may be noted, disposes also of the defendant's further contention that the trial court erred in charging the jury that Abbott did not assume the risk of the flight.

This brings us to the question whether the plaintiff was deprived of a right to rely on Res ipsa principles once she introduced evidence of specific acts of negligence on the part of the defendant's pilot--evidence, for instance, that the latter waved to someone on the ground just before the accident; that, in violation of regulations, he flew at too low an altitude and at too slow a speed; and that he had taken several drinks shortly before the flight. On the strength of this proof, the jury could properly have found that the accident was caused by the pilot's violation of the provisions of statute and regulation governing the operation of helicopters (see, e.g., General Business Law, Consol.Laws, c. 20, § 245; Federal Aviation Regulations, § 91.79), and the trial judge, at the close of the evidence, so instructed the jurors. In addition, the judge invoked the doctrine of Res ipsa loquitur, charging that they could 'infer negligence from the happening of the accident.' ⁵

The rule of Res ipsa loquitur permits an inference of negligence to be drawn if the instrumentality causing the injury to the plaintiff was in 'the exclusive possession and control of the person charged with negligence * * * and * * * the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff'. (Galbraith v. Busch, 267 N.Y. 230, 234, 196 N.E. 36, 38; see, also, Foltis, Inc. v. City of New York, 287 N.Y. 108, 114--115, 116--117, 38 N.E.2d 455, 459--460, 460--461; Manley v. New York Tel. Co., 303 N.Y. 18, 25, 100 N.E.2d 113, 116.) When these requirements have been met--and, of course, they are in the case of an aircraft accident (see, e.g., Zaninovich v. American Airlines, 26 A.D.2d 155, 271 N.Y.S.2d 866; Seaman v. Curtiss Flying Serv., 231 App.Div. 867, 247 N.Y.S 251; Citrola v. Eastern Air Lines, 2 Cir., 264 F.2d 815; Lobel v. American Airlines, 2 Cir., 192 F.2d 217, cert. den. 342 U.S. 945, 72 S.Ct. 558, 96 L.Ed. 703)--the jury may reasonably infer that the defendant was negligent, even though the actual or specific cause of the accident is not known. The defendant before us does not dispute this but he contends that the plaintiff's introduction of evidence of specific acts of negligence on the part of Page's pilot compelled her to rely solely on that evidence and disabled her from relying on Res ipsa principles.

In support of this contention, the defendant points to certain language in several New York cases to the effect that the inference arising from Res ipsa loquitur cannot be availed of where plaintiff introduced evidence as to the specific act of negligence which is allegedly the cause of the injury complained of. (See Bressler v. New York R.T. Corp., 270 N.Y. 409, 413, 1 N.E.2d 828, 829; Whitcher v. Board of Educ., 233 App.Div. 184, 185, 251 N.Y.S. 611, 613; Cunningham v. Lence Lanes, 25 A.D.2d 238, 268 N.Y.S.2d 609; see, also, Zaninovich v. American Airlines, 26 A.D.2d 155, 271...